### In the 

# United States Court of Appeals

For the Seventh Circuit

____________________ No. 18-3107

K IMBERLY B ILINSKY
, Plaintiff-Appellant

,

v.

A MERICAN A IRLINES
, I NC
., Defendant-Appellee

.

____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.

No. 16 C 4253 — Virginia M. Kendall

, Judge

.

____________________

A RGUED M ARCH 27, 2019

— D ECIDED J UNE 26, 2019

A MENDED A UGUST 9, 2019

____________________

Before E ASTERBROOK , K ANNE , and H AMILTON
, Circuit Judges

.

K ANNE
, Circuit Judge . American Airlines employed Kimberly Bilinsky for more than tw o decades. That employment

continued without issue after Bilinsky contracted multiple sclerosis (“MS”) in the late 1990s. American provided a “Work from Home Arrangement” (“WFHA”), which permi tt ed Bilinsky to do her job from her home in Chicago, even though2 No. 18-3107

her colleagues operated out of the company headquarters inDallas. But after a 2013 merger, American restructured its operations and informally repurposed Bilinsky’s department. The executives determined that the new duties required thein-person involvement of the employees, so the company rescinded the arrangement and demanded that Bilinsky relocate to Texas to work face-to-face. Once negotiations collapsed, American terminated Bilinsky.

This lawsuit under the Americans with Disabilities Act (“ADA”) followed. 42 U.S.C. § 12111 et seq . The district court granted summary judgment to American, fi nding that Bilinsky was no longer quali fi ed for the position in light of the changes in her responsibilities. Because Bilinsky’s evidence
does not counter that assertion, we a ffi rm.

I. B ACKGROUND
American hired Bilinsky in 1991. She served in several positions, taking on a role in 2007 as a communications specialist in the Flight Service Department, located in Dallas at the company’s headquarters. But according to Bilinsky’s medical records, excessive heat aggravates her MS symptoms and causes her discomfort and reduced functioning. Under the WFHA, American permi tt ed Bilinsky to work from Chicago, where hot weather is less of a concern. She usually traveled to Dallas one day per week to meet with colleagues and perform tasks that required a physical presence.

Bilinsky’s duties included p articipating in conference calls, administering an internal website used to distribute information to fl ight a tt endants, publishing articles intended for consumption by fl ight a tt endants, producing e-mail communications to employees, and preparing remarks for her boss’sNo. 18-3107 3

weekly internal video announcement. The position had no
formal, wri tt en job description. Bilinsky performed successfully for several years, and there is no record of complaints or disciplinary action against her.

American merged with US Airways in 2013. The resulting company (still American Airlines ) had to integrate the operations of both airlines into a single entity with common policiesand procedures. Hector Adler, the Flight Service Department’s Vice President at that time, testi fi ed that “[i]t was a very extensive and signi fi cant task that involved nearly every person in the department.” As the process dragged on, Adler felt that existing work arrangements were insu ffi cient to meet the demand. The department ex panded its workload, transitioning from primarily producing wri tt en communications to

pu tt ing on live events and performing crisis management

functions. The additional work caused the Dallas employees to feel “spread very thin at times.”

Under the circumstances, Adle r unilaterally decided to require all employees to be physically present at headquarters.

This decision a ff ected two employees othe r than Bilinsky: one
relocated to Dallas, but the other refused and was terminated. Upon learning of the impending changes, Bilinsky spoke with her immediate supervisor, Cathy Scheu, on May 20, 2014.Bilinsky emphasized that her WFHA was a necessary accommodation for her disability and that relocating to Dallas was not an option. Scheu communicated the information to Adler, but Adler indicated his intent to deny the request.

Later that year, Scheu and Hu man Resources representative Rhonda Nicol-Perrin approached Bilinsky to determinewhether the company could make alternative accommodations that would permit Bilinsky to relocate. Bilinsky4 No. 18-3107

responded that the company would need to provide “a tube of air conditioning around [her] at all times.” She stressed that working at American’s Dallas o ffi ce was not a problem, but living in a hot part of the co untry year-round and trying to engage in activities outside the o ffi ce would create a concern.

Scheu and Nicol-Perrin then l ooked for other positions for Bilinsky. They identi fi ed a few jobs in Chicago, but Bilinsky was either not quali fi ed for them or not interested in them. Bilinsky separately applied for a technical writer job in theFlight Service Department. That job was also located in Dallas, but the incumbent had worked remotely. Although the interviewer indicated that she wanted to hire Bilinsky for theposition, the company declined to allow Bilinsky to work remotely in the new capacity. The position was vacant precisely

because the incumbent had been working from home and was

a ff ected by the same policy shift that a ff ected Bilinsky.

Throughout 2014 and early 2015, Bilinsky continued towork as before. Linda Carlson took over as Bilinsky’s immediate supervisor after Scheu was promoted. Carlson expressed no complaints about Bilinsky’s performance. The issue came to a head in February 2015, when the department helped to produce the American Airlines Leadership Conference in Dallas. Bilinsky was not asked to a tt end the event or assist with preparations, but Carlson otherwise called upon “anybody who was a warm body” to help with the event. Carlson acknowledged that “if you asked [Bilinsky] to pick up the slack or to do a project, she was always willing.” But she immediately quali fi ed that statement: “She just wasn’t able to do things that you need ed to do to support an event.You can’t drive to the hotel that’s in Dallas if you’re in Chicago.” One month after the conference, Scheu and Nicol-No. 18-3107 5

Perrin informed Bilinsky that she would need to complete herrelocation or leave her job. On May 1, 2015, American terminated Bilinsky’s employment.

Bilinsky fi led a complaint with the Equal Employment Opportunity Commission and received a “right to sue” le tt er. She then fi led this suit in the federal district court in Chicago. Her complaint alleged three counts: (I) that American failedto accommodate her disability under the ADA; (II) that American retaliated against her for insisting on an accommodation by denying her the technical writer position; and (III) thatAmerican failed to accommodate her disability under the Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5 § 1-

102 et seq . After discovery, the district court granted summary judgment to American on all three counts, fi nding that Bilinsky was not a “quali fi ed individual” for the position in light of the changes in her responsib ilities, and was therefore ineligible for the ADA’s protection. Bilinsky appealed the award of summary judgment on counts I and III.

II. A NALYSIS

We review summary judgment de novo , considering the evidence in the light most favo rable to Bilinsky and drawing

all reasonable inferences in her favor. Miller v. Ill. Dep’t of Transp. , 643 F.3d 190, 192 (7th Cir. 2011). Illinois courts “have looked to the standards appl icable to analogous federal claims” when evaluating IHRA claims, so we consolidate our analysis of both counts. Sangamon Cty. Sheri ff

’s Dep’t v. Ill. Human Rights Comm’n , 908 N.E.2d 39, 50 (Ill. 2009); Teruggi v. CIT Grp./Capital Fin., Inc. , 709 F.3d 654, 659 (7th Cir. 2013).

Bilinsky believes the district court erred in fi nding that she was not a “quali fi ed individual” under the statute and6 No. 18-3107

therefore not entitled to prot ection. The ADA prohibits a covered employer from “discriminat[ing] against a quali fi ed individual on the basis of disability in regard to ... the ... discharge of employees ... .” 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical ... limitations of an otherwise quali fi ed individual with a disability who is an ... employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on th e operation of the business of [the employer].” Id. § 12112(b)(5)(A). A “quali fi ed individual”is one who “can perform the essential functions of the employment position.” Id. § 12111(8). The statute directs thatcourts shall give “consideration ... to the employer’s judgment as to what functions of a job are essential.” Id.

The EEOC has de fi ned “essential functions” as “the fundamental job duties of the employment position”; they do notinclude “marginal functions.” 29 C.F.R. § 1630.2(n)(1). In interpretive guidance, the EEOC has noted that, when assessing the essential functions of a job, “the inquiry will then center around whether removing the function would fundamentally alter that position.” Id. § 1630 App. “To determine whether a job function is essential, we look to the employer’s judgment,

wri tt en job descriptions, the amount of time spent on the function, and the experience of thos e who previously or currently hold the position.” Rooney v. Koch Air, LLC , 410 F.3d 376, 382(7th Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). We also consider “[t]he consequences of not requiring the incumbent to perform the function.” Miller , 643 F.3d at 198.

The district court’s judgment re sted on its conclusion that Bilinsky was not a “quali fi ed individual” under the ADA. “[A] worker has no claim under the ADA if she, even with aNo. 18-3107 7

reasonable accommodation, cannot do the job for which she

was hired.” DePaoli v. Abbo tt Labs. , 140 F.3d 668, 674 (7th Cir. 1998) (citing Ma tt hews v. Commonwealth Edison Co. , 128 F.3d 1194, 1195 (7th Cir. 1997)). When de fi ning a job’s essential functions, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a wri tt en description ... for the job, this description shall be consid ered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). “Although we lookto see if the employer actually requires all employees in a particular position to perform the allegedly essential functions, we do not otherwise second-gue ss the employer’s judgment in describing the essential requirements for the job.” DePaoli

, 140 F.3d at 674 (citing, among other sources, 42 U.S.C. § 12111(8) and 29 C.F.R. Pt. 1630, App. § 1630.2(n)). But we’ve also cautioned that although “the employer’s judgment is an important factor, ... it is not controlling.” Miller , 643 F.3d at 198. “The ADA does not give employers unfe tt ered discretion

to decide what is reasonable.” Id. at 199.

“The essential-function inquiry is a factual question, not a question of law.” Brown v. Smith , 827 F.3d 609, 613 (7th Cir. 2016). The plainti ff “bears the initial burden of establishing that she was a quali fi ed individual who could perform the essential functions of her position.” Taylor-Navotny v. Health All.
Med. Plans, Inc. , 772 F.3d 478, 493 (7th Cir. 2014). Both parties agree that Bilinsky’s MS is a qualifying disability under the
statute, and American concedes that Bilinsky was quali fi ed to do the job with her accommoda tion prior to the 2013 merger.But it argues that the merger fundamentally changed the position’s nature and that consiste nt, physical presence on site

became an essential function of the position at some point after 2013. Because Bilinsky could not perform that function8 No. 18-3107

from her home in Chicago, and because she was unable to relocate to establish a physical presence, American contends that she was not quali fi ed for the transformed position.

In Miller , a highway worker su ff ered a panic a tt ack while working on a bridge suspended high above a river. 643 F.3dat 193. Diagnosed with acrophobia, he requested an accommodation that he not be assigned to any jobs requiring him to

work more than 25 feet in the air. Id. The employer determined that such work was an es sential function of his job and

terminated him. Id. at 193–94. The district court agreed and granted summary judgment. But we reversed, believing that there was a genuine dispute of material fact over whether such work was truly essential to Miller’s job. Applying theEEOC regulations, we thought it important to “look to evidence of the employer’s actual practices in the workplace.” Id. at 198. Because the bridge crew had a history of divvying up
tasks to crew members based on their “individual abilities, preferences, and limitations,” “M iller’s request for reasonable accommodation did not ask [the employer] to do anything it was not already doing.” Id. at 200. There was a genuine dispute over whether conducting wo rk high in the air was essential, and it should have been left to a jury to resolve.

But we came to the opposite conclusion in Taylor-Navotny

.There, an employee’s MS symptoms kept her from maintaining a regular schedule. 772 F.3d at 483. She came into the o ffi ce at varied hours and could not plan her schedule in advance.

Id. She requested a work-from-home arrangement, but even then, she failed to sign online at regular hours or a tt end meetings by phone consistently. Id. at 486–87. The employer let her go, and the district court granted summary judgment to the employer because Taylor-Navotny could not perform theNo. 18-3107 9

job’s essential functions, such as regular a tt endance. We affi rmed. Although we had sometimes observed that regular attendance and punctuality are no t essential functions of every job, we stressed that “an employer is generally permi tt ed to treat regular a tt endance as an essential job requirement and

need not accommodate erratic or unreliable a tt endance.” Id. at 489 (quoting Basden v. Prof’l Transp., Inc. , 714 F.3d 1034, 1037 (7th Cir. 2013)). Working from home was not the issue; instead, wherever the employee might be, she needed to be available and participating du ring normal working hours. Id.

at 490

. We a ffi rmed summary judgment. Id.

This case falls somewhere between those two poles. Bilinsky makes the same claim as the plainti ff in Miller : she was able to do the job successfully for years, and her termination resulted merely from a change in her boss’s preferences aboutworking arrangements that did not accurately state the position’s essential functions. Al though American acknowledges that Bilinsky was once able to perform the essential functions with a reasonable accommodation prior to the 2013 merger, it

contends that those functions changed upon restructuring.The nature of her team’s work evolved from independent activities (curating content on a website, responding to wri tt enquestions from employees, etc.) to team-centered crisis management activities, involving fr equent face-to-face meetings

with team members on short notice to coordinate work.

Those facts distinguish this case from Miller . There, the highway construction crew’s work continued as it had before; there were no changes in thei r duties due to intervening events. The plainti ff ’s medical condition was the only factor that changed over time. We reversed a grant of summary judgment because the plainti ff produced evidence showing10 No. 18-3107

that his request for an accommo dation “did not ask [his employer] to do anything it was not already doing.” 643 F.3d at 200. The accommodation he requested was already something

that occurred in “the normal course” of the crew’s duties. Id.
See also EEOC v. McLeod Health, Inc. , 914 F.3d 876 (4th Cir. 2019) (reversing summary judgment for employer where

there was no evidence of a change in the plainti ff ’s job duties, but only a possible deterioration in her medical condition).

Bilinsky faces a di ff erent problem: evidence of a change injob responsibilities for everyone in her department. The district court determined that “[d]eference to American’s judgment as the employer is required in the absence of an adequate factual legal basis to abandon that deference.” Bilinsky
v. Am. Airlines, Inc. , No. 16-c-4253, 2018 WL 4181481 at *7 (N.D. Ill. Aug. 31, 2018) (citing Gra tz l v. O ffi ce of Chief Judges

, 601 F.3d 674, 679 (7th Cir. 2010); DePaoli , 140 F.3d at 674).American produced testimony from several employees stating that the nature of the work slowly evolved after the merger and changed the essential functions of Bilinsky’s job. Those employees included Adler (VP of Flight Service), Scheu (Bilinsky’s fi rst supervisor), and Carlson (Bilinsky’s subsequent supervisor). They all uniformly testi fi ed about theunique stress the merger caused, the changing day-to-day responsibilities of employees in the department, and the increased demand for services that only local employees couldprovide. Those with personal knowledge of Bilinsky’s circumstances testi fi ed that she performed as well as she could given her accommodation, but that there remained a gap that Bilinsky (and the other remote employees) could not fi ll.

To counter American’s assertions, Bilinsky points primarily to her experience in the po sition prior to the merger, asNo. 18-3107 11

well as her continued success after the merger occurred. Those are important consideratio ns in the EEOC’s list of factors, but as the district court correctly noted, Bilinsky’s success prior to the merger does not address whether the essential functions of her job change d some time after the merger.

Similarly, while evidence that Bilinsky performed successfully post-merger would be probative of her quali fi cation for the updated position, testimony from her co-workers did not support that proposition. Bili nsky’s best evidence is testimony from Linda Carlson, her manager after Cathy Scheu departed in late 2014. Carlson testi fi ed that Bilinsky willingly agreed to take on extra work for other employees when live events were taking place and they could not be at their desks: “If you asked Kimberly to pick up the slack or to do a project, she was always willing. I don’t recall her ever not being willing to help or pick up slack.” But in the same breath Carlson gave testimony that undermines Bilinsky’s case: “[Bilinsky] just wasn’t able to do things th at you needed to do to support

an event. You can’t drive to the hotel that’s in Dallas if you’re in Chicago. You can’t go chec k out [AV] equipment in Chicago. You can’t meet with subject ma tt er experts to directly, you know, get photographs.” “[Other employees] would be frustrated they didn’t have another set of hands to divide and conquer work that had to be done there. ... And I[,] like the team[,] felt spread very thin at times.” The testimony establishes Bilinsky’s willingness to perform, but it does not create a genuine dispute over her ability to fi ll the gap.

At best, Bilinsky’s evidence sh ows that the job responsibilities evolved slowly. That partially distinguishes this case

from Gra tz l . There, a court reporter su ff ered from incontinence and required frequent, unplanned bathroom breaks.12 No. 18-3107

601 F.3d at 676–77. That made her ill-suited to working in a
courtroom, so she worked in a central control room in a specialist position. Id. at 677. But the state later eliminated the specialist position and put all court reporters in the same job
category. Id. The county’s chief judge determined that all court reporters would henceforth participate in a rotationthrough all courtrooms, an arrangement that did not accommodate Gra tz l’s needs. Id. After negotiations broke down,

Gra tz l sued. Id. at 678. The district court granted summary judgment to the employer, and we a ffi rmed. We determined

that Gra tz l could not “prove that she [was] quali fi ed for her current job simply by citing evidence that she was quali fi ed for a previous job, with di ff erent essential functions, that ha[d] been eliminated.” Id. at 680.

Bilinsky’s case is not quite so black-and-white, as American never eliminated her posi tion and did not have a wri tt en job description that it updated to re fl ect new circumstances.

But the fact that American transi tioned the department to new responsibilities slowly rather than all at once does not mean that the job’s essential functions didn’t change at some point after the merger. To that extent, the rule in Gra tz l applies equally to this case: “Just as an employer is not required to create a new position or strip a current job of its essential functions [under the ADA], an employ er is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate.” Id

. Bilinsky’s remaining challenges focus on the su ffi ciency of

American’s evidence. But at the summary judgment stage, the district court’s job was not to weigh the evidence but merelyNo. 18-3107 13

to determine whether there was a genuine dispute of fact. 1 American’s witnesses speci fi cally identi fi ed only one major event for which Bilinsky was absent: the 2015 Leadership Conference. Bilinsky argues that a single event is not enough to establish a pa tt ern, but she o ff ered no countervailing evidence to show that the conferen ce was an isolated event rather than one example of a regular occurrence.

We stress that our holding today is con fi ned to the unique facts of this case. The ADA’s purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individu als with disabilities.” 42 U.S.C. § 12101(b)(1). The statute “does not give employers unfe tt ered discretion to decide what is reasonable.” Miller , 643F.3d at 199. Absent some change in circumstance, an employer may not rescind an accommodation simply because itis inconvenient or burdensome—the statute requires the employer to make reasonable sacri fi ces to keep disabled persons in the work force. But American faced a unique intervening event: a major merger between two large corporations. The process of synchronizing their former policies and procedureswould necessarily lead to some evolution in individual responsibilities, and an employee cannot create a dispute of fact merely by pointing to her abili ty to perform in the job before the merger occurred (or as the changes evolved). That’s

1 The district court did briefly discuss weighing the evidence between the two parties. See Bilinsky , 2018 WL 4181481 at *6 (“But these facts do not sufficiently outweigh American’s judgment and so Bilinsky does not provide the Court with an adequate factual dispute.”) (emphasis added). But the court seems to have used the term while determining whether Bilinsky had enough evidence to overcome the presumption that an employer’s understanding of the essential factors of a job is correct. See Basith v. Cook Cty. , 241 F.3d 919, 928 (7th Cir. 2001). The district court did not err.14 No. 18-3107

especially true when the revocation of WFHAs applied to all remote employees, not only to the disabled plainti ff

. 2

Finally, we offer a note of caution to future ADA litigants.We once said that “[a]n employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. ... [I]t would take a very extraordinary case for the employ ee to be able to create a triable issue of the employer’s fa ilure to allow the employee to

work at home.” Vande Zande v. State of Wis. Dep’t of Admin. , 44 F.3d 538, 545 (7th Cir. 1995). Bu t we also acknowledged that “[t]his will no doubt change as communications technology

advances.” Id. at 544. Technological development and the expansion of telecommuting in the twenty-four years since

Vande Zande likely mean that such an accommodation is not quite as extraordinary as it wa s then. That inquiry is contextspecific; a work-from-home arrangement might be reasonable for a software engineer but not for a construction worker.

“[T]here is a general consen sus among courts ... that regular work-site attendance is an essential function of most jobs.” Credeur v. Louisiana , 860 F.3d 785, 793 (5th Cir. 2017) (collecting cases). The position’s nature will often require

face-to-face collaboration. EEOC v. Yellow Freight Sys., Inc. , 253F.3d 943, 948 (7th Cir. 2001) (en banc). But not in every instance. See, e.g., Mosby-Meachem v. Memphis Light, Gas & Water

Div. , 883 F.3d 595, 603–05 (6th Cir. 2018). Here, the parties agree that telecommuting was reasonable for years before

2 Bilinsky produced evidence that some employees were permitted to remain in Arizona after the new policy went into effect. The record shows that those employees’ positions were no t based out of Dallas (as was Bilinsky’s) and that they were using lega cy operating systems that had not yet been imported to the Dallas facility.No. 18-3107 15

intervening events transforme d Bilinsky’s duties so thatphysical presence became an essential function of her job. Litigants (and courts) in ADA cases would do well to assess

what’s reasonable under the st atute under current technological capabilities, not what was possible years ago.

Because it based summary judgment on the fi nding that Bilinsky was not a quali fi ed individual, the district court didnot reach the issue of whether American engaged in the interactive process to a ff ord Bilinsky an alternative accommodation. We do not reach that issue, either.

III. C ONCLUSION

Bilinsky’s condition prevented her from living in Texas. American accommodated that disability for several years by permi tt ing her to work from her home in Illinois. But after amajor merger, her employer determined that its remote arrangements were insu ffi cient to meet business demands, andit uniformly rescinded those arrangements with all its employees, disabled and non-disabled alike. For the foregoing reasons, the judgment of the district court is AFFIRMED.16 No. 18

‐ 3107

H AMILTON
, Circuit Judge

, dissenting. This case raises the

kind of issue about fl exible working arrangements under the

Americans with Disabilities Act that we are likely to see more often. I agree with a good deal of the majority’s opinion but respectfully dissent on the bo tt om line in this case. Whether working fi ve days a week in American Airlines’ Dallas head

‐ quarters was an “essential function” of plainti ff Kimberly Bilinsky’s job may well present a close question for a jury. It

is not a close call on summary judgment. We should reverse the district court’s grant of summary judgment and let a jury

decide the issue.

First, though, the points of agreement: the majority cor

‐ rectly points out that the ADA’s a ffi rmative duty of reasona

‐ ble accommodation requires employers to make an e ff ort to
hire and retain employees with disabilities. Courts do not and

should not merely take at face value an employer’s claims

about a job’s essential functions. Ante at 13–14. This caution

is consistent with our case law, which shows, as the majority

also acknowledges, how fact

‐ sensitive these questions about

essential functions and reasonable accommodations can be.

See Brown v. Smith

, 827 F.3d 609, 613–14 (7th Cir. 2016) (af

‐ fi rming jury verdict for plainti ff who could not obtain com

‐ mercial driver’s license even where wri tt en job description

said such license was required for job; evidence of actual du

‐ ties undermined claim of essential function); Taylor

‐ Navotny v. Health Alliance Medical Plans, Inc.

, 772 F.3d 478, 489 (7th Cir. 2014) (a ffi rming summary judgment for employer, who was

not required to tolerate “erratic or unreliable a tt endance”);

Miller v. Illinois Dep’t of Transportation

, 643 F.3d 190, 198–99 (7th Cir. 2011) (reversing summary judgment for employer

where evidence of actual work practices indicated accommo

‐ dations plainti ff needed were reasonable).No. 18

‐ 3107 17

Further, the majority opinion correctly and helpfully

warns that our comments in Vande Zande about working from

home as a reasonable accommodation require a fresh look to

‐ day, almost a quarter of a century later, as technology and working pa tt erns have changed. Ante at 14–15, quoting Vande

Zande v. Wisconsin Dep’t of Administration

, 44 F.3d 538, 545 (7th

Cir. 1995).

But returning to the speci fi cs of this case, this record shows

a genuine issue of material fact as to whether working in Dal

‐ las fi ve days a week was actually an essential function of Kim

‐ berly Bilinsky’s job. Her job had no wri tt en job description.

Viewed through what should be the plainti ff‐ friendly lens of

summary judgment, the thrust of defendant’s evidence is simply that the vice president of Bilinsky’s department pre

‐ ferred to have all employees work at the Dallas headquarters

fi ve days a week. I assume that arrangement would be easiest

for him and other managers, but that’s not the standard under

the ADA.

Bilinsky has presented substantial evidence that working

from home four days a week, with a weekly trip to spend the day in the Dallas o ffi ce, let her perform the essential functions

of her job both before and after the merger. Bilinsky continued

her work

‐ from

‐ home arrangement for fi fteen months follow

‐ ing the merger. She received good evaluations and no criti

‐ cism. The only speci fi c evidence American managed to o ff er

was a claim that Bilinsky’s work

‐ from

‐ home arrangement prevented her from helping the team organize and manage

one special event, a leadership conference in Dallas in18 No. 18

‐ 3107

February 2015. Bilinsky counters that American never even asked her to help with the event. 1

The unusual absence of a wri tt en job description here

should raise our eyebrows about this grant of summary judg

‐
ment. I agree with the majority that the absence of a job de

‐ scription distinguishes Bilinsky’s case from Gra tz l v. O ffi ce of Chief Judges

, where a position was eliminated and we held that

the plainti ff could not prove she was quali fi ed for her current job simply because she was quali fi ed for a previous job. 601

F.3d 674, 679–80 (7th Cir. 2010); cf. Brown

, 827 F.3d at 613–14 (a ffi rming jury verdict for plainti ff despite wri tt en job descrip

‐ tion identifying as essential one quali fi cation he could not

meet; evidence showed quali fi cation was for marginal, not es

‐ sential, job functions). Bilinsky had performed successfully

for years. There is no new position or new job description that

American can point to as evidence that the essential functions

of her job changed. American’s evidence of management pref

‐

erences simply does not distinguish between job functions that

are essential and those that are only marginal. Its evidence

does not show the absence of a genuine issue of material fact.

While the merger may have posed new challenges for the department, the ADA requires employers to make reasonable

sacri fi ces to keep disabled persons in the workforce. I view Bilinsky’s situation as much more in line with the plainti ff in

Miller v. Illinois Department of Transportation

. Bilinsky worked

on a team, and according to her immediate supervisor, Linda
Carlson, Bilinsky was “always willing” to “pick up the slack

1 We should not assume that Bilinsky would have refused a request

or order to work in Dallas for a few days to help with that conference.

Dallas in February is unlikely to be hotter than Chicago in the summer.No. 18

‐ 3107 19

or to do a project.” The only quali fi cation Carlson o ff ered was that Bilinsky’s work

‐ from

‐ home arrangement meant she

“wasn’t able to do things that you needed to do to support an event,” referring to the one conference that American, we

must assume, did not even ask Bilinsky to help with. Ameri

‐

can did not o ff er conclusive evidence of essential functions

that were inconsistent with Bilinsky’s successful work

‐ from

‐ home arrangement.

As the Sixth Circuit recently explained, “full

‐ time pres

‐

ence at work is not an essential function of a job simply be

‐

cause an employer says that it is.” Hoste tt ler v. College of

Wooster

, 895 F.3d 844, 857 (6th Cir. 2018) (reversing summary judgment for employer; facts disputed as to whether em

‐ ployee could do job’s essential functions on modi fi ed work schedule). As in Hoste tt ler

, American may have preferred that Bilinsky

be in the o ffi ce 40 hours a week. And it may have

been more e ffi cient and easier on the depart

‐
ment if she were. But those are not the concerns of the ADA: Congress decided that the bene fi ts
of gainful employment for individuals with dis

‐ abilities—dignity, fi nancial independence, and

self

‐ su ffi ciency, among others—outweigh sim

‐ ple calculations of ease or e ffi ciency. To that
end, the ADA requires that employers reasona

‐ bly accommodate employees with disabilities, including allowing modi fi ed work schedules.

Id. at 857.

Bilinsky’s situation is much like that of the employee in

EEOC v. McLeod Health, Inc.

, 914 F.3d 876, 881–82 (4th Cir.20 No. 18

‐ 3107

2019), where the Fourth Circuit reversed summary judgment

for the employer, fi nding among other points a genuine issue

of material fact concerning whether it was an essential func

‐ tion of the employee’s job to travel around to di ff erent job

sites. Like Bilinsky, the employee in McLeod Health wrote and

edited an internal newsle tt er. The employer there at least had

a wri tt en job description, but it did not mention traveling to
and from company events or conducting in

‐ person inter

‐ views. Id. at 881. In reversing summary judgment for the em

‐ ployer, the Fourth Circuit explained that, while the record

contained evidence supporting the employer’s position, the

wri tt en job description’s silence on the supposedly essential

function provided substantial evidence that it was not in fact

an essential function. Id. at 881–82.

In this case, the majority sidesteps delicately around the

district judge’s erroneous reference to “weighing” the evi

‐ dence on summary judgment, ante at 13 n.1, but the majority

then makes essentially the same mistake. On summary judg

‐ ment, it is not our job to decide which party’s evidence is more persuasive. A jury should weigh the evidence and determine

whether working from Dallas fi ve days a week was actually

an essential function of Bilinsky’s job after the merger.